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2025 DIGILAW 533 (KAR)

Rangappa, S/o. Chathrera Neelappa v. Sannamane Halappara Gangamma (Jogamma), W/o. Rudrappa

2025-06-24

VIJAYKUMAR A.PATIL

body2025
ORDER : (VIJAYKUMAR A. PATIL, J.) This writ petition is filed by the petitioners challenging the order dated 16.10.2014 passed in M.A.No.8/2014 by the I Addl. Senior Civil Judge, Davanagere. 2. Heard. 3. Sri.R.Gopal, learned counsel for the petitioners submits that the petitioners filed a suit for mandatory injunction against the respondents to execute a rectification deed for correcting the survey number of the suit schedule property from 49/5 to 47/7. In the said suit, the petitioners filed an application seeking temporary injunction against the respondents during the pending of the suit. It is submitted that the Trial Court allowed the temporary injunction application after hearing the parties. However, the Appellate Court reversed the order of the Trial Court by the impugned order. It is further submitted that the deceased-petitioner No.1 purchased the suit schedule property from one Lakkavva. However, in the sale deed, an inadvertent mistake with regard to the survey number had crept in. The boundaries mentioned in the sale deed dated 18.02.1963 tally with the boundaries of Sy.No.47/7 of Kabbur Village, Davanagere Taluk. The possession of the petitioners is evident from the document placed before the Court. The Gazette notification dated 02.12.1965 indicates that 13 guntas of the land has been acquired in Sy.No.47/7 wherein Neelappa is shown as anubhavadar. Further, communication dated 15.10.2013 at Annexure-J of the respondent No.1 to the Tahsildar clearly indicates that the petitioners are in possession of the suit schedule property. The Tahsildar forwarded the said communication at Anneuxre-J to the jurisdictional police indicating that the respondent No.1 has sought for police protection to dispossess the petitioners from the suit schedule property. The learned counsel for the petitioners also relies on the mahazar at Annexure-H dated 16.05.2012 which further makes it clear that the petitioners have filed an application for effecting the entry in the RTC in respect of the suit schedule property and at that time, the said mahazar was drawn which also establishes the possession of the petitioners over the suit schedule property. It is also submitted that the Appellate Court did not appreciate the documentary evidence placed by the petitioners and proceeded to record its finding on title, which is impermissible. The Appellate Court, based on the recent entries in the RTC, allowed the appeal. It is submitted that now the respondents, after the disposal of the appeal are trying to dispossess the petitioners high-handedly. The Appellate Court, based on the recent entries in the RTC, allowed the appeal. It is submitted that now the respondents, after the disposal of the appeal are trying to dispossess the petitioners high-handedly. Hence, he seeks to allow the petition. 4. Per contra, Sri.K.R.Patil, learned counsel for the contesting respondents supports the impugned order of the Appellate Court and submits that the revenue records in respect of Sy.No.47/7 stand in the name of the respondents and the petitioners failed to prove that they have purchased Sy.No.47/7 from its owner. It is submitted that the Appellate Court considered the entire material on record and passed a detailed order by recording the prima facie opinion that the petitioners failed to make out a ground for injunction and hence, allowed the appeal. He seeks to dismiss the petition. 5. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondents and perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 6. The petitioners filed a suit for mandatory injunction seeking for execution of rectification deed for correcting the survey number of the suit schedule property from 49/5 to 47/7. An application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure , 1908, was filed by the petitioners seeking prayer against the respondents restraining them from interfering with the possession of the petitioners with regard to the suit schedule property. The said application came to be allowed on 29.01.2014. Being aggrieved, the respondents filed M.A.No.8/2014. The Appellate Court allowed the appeal by setting aside the order of the Trial Court. The case of the petitioners that one Lakkavva sold the suit schedule property under the registered sale deed dated 18.02.1963 in favour of the petitioner No.1, now deceased, and the petitioners are in enjoyment and uninterrupted possession of the suit schedule property from the last 50 years. It is contended that the petitioners recently noticed that there is a mistake with regard to the survey number in the registered sale deed dated 18.02.1963. It is the further case of the petitioners that the boundaries of the sale deed and their possession tally with each other and as per the same, the correct survey number of their property is 47/7 of Kabbur Village, Davanagere Taluk. 7. It is the further case of the petitioners that the boundaries of the sale deed and their possession tally with each other and as per the same, the correct survey number of their property is 47/7 of Kabbur Village, Davanagere Taluk. 7. The petitioners, in order to establish the possession over the suit schedule property have produced Gazette notification dated 02.12.1965, wherein certain properties were acquired including 13 guntas of Sy.No.47/7. The name of one Neelappa, S/o Gangappa is shown as anubhavadar in the said notification and Neelappa is the father of the petitioners. The communication at Annexure-J dated 15.10.2013 sent by the respondent No.1 to the jurisdictional Tahsildar clearly indicates that the petitioners are in possession of the suit schedule property and sought for possession from them. The jurisdictional Tahsildar sent the said communication dated 15.10.2013 to the jurisdictional police forwarding the request of the respondent No.1 for police protection to take possession. The mahazar drawn by the revenue officials in front of the villagers dated 16.05.2012 at Annexure-H indicates that the petitioners are in possession of the suit schedule property. The Appellate Court mainly relied on Form No.1 and the RTC in respect of Sy.No.47/7 and came to the conclusion that the name of Kampalavva is shown as the owner and further recorded that the petitioners have not placed any scrap of paper to show that Lakkavva was the owner of the suit schedule property and proceeded to vacate the injunction order. The finding of the Appellate Court is that Lakkavva sold the property in favour of the petitioners without any right over it and such sale deed is not binding on the real owner of Sy.No.47/7. In my considered view, the aforesaid finding recorded by the Appellate Court with regard to the title of the petitioners was uncalled for as there is no counter claim of the respondents with regard to the title. Admittedly, the suit is for mandatory injunction seeking for rectification of the incorrect survey number in the sale deed of the petitioners. The Appellate Court has recorded a perverse finding on the title of the petitioners which was not the subject matter of the appeal. Admittedly, the suit is for mandatory injunction seeking for rectification of the incorrect survey number in the sale deed of the petitioners. The Appellate Court has recorded a perverse finding on the title of the petitioners which was not the subject matter of the appeal. It is trite law that whether to grant or refuse a temporary injunction is the sole discretion of the trial court and the scope of the Court of appeal is simply to consider whether the Trial Court has exercised its discretion properly. The Appellate court must not approach the case like a Trial Court. My view gains support from the celebrated judgment of this Court in the case of SRI GOWRISHANKARA SWAMIGALU V SRI SIDDHAGANGA MUTT , ILR 1989 Kar 1701 It would be useful extract the para 10 and 11 of the aforementioned judgment as follows: " 10. The inquiry by me should not go beyond the foregoing and certainly does not extend to substituting my views to that of the learned Civil Judge. This again is trite law and a host of decisions of this Court make the aforesaid position very clear. I may refer in passing to the decision of His Lordship the Hon'ble Mr. Justice Govinda Bhat (as His Lordship then was) in Lakshminarasimhiah v. Yalakki Gowda [1965 (1) Mys. L.J. 370.] . Adverting to the scope of an appeal from the order of the trial Judge granting or refusing to grant an interim injunction, His Lordship said: “What the Court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The Appellate Judge is not to approach the case as if he were the trial Judge. The granting or refusing of injunction is a matter resting in the sound discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real justice of the case. 11. The decision in Lakshminarasimhaiah's case [1965 (1) Mys. L.J. 370.] has been followed by Venkataswamy, J. (as His Lordship then was) in Rangamma v. Krishnappa [1968 (1) Mys. L.J. 552.] . His Lordship held: “Granting or refusing of temporary injunction rests on the sound exercise of discretion by the Court. 11. The decision in Lakshminarasimhaiah's case [1965 (1) Mys. L.J. 370.] has been followed by Venkataswamy, J. (as His Lordship then was) in Rangamma v. Krishnappa [1968 (1) Mys. L.J. 552.] . His Lordship held: “Granting or refusing of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the Appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order.” Both these decisions have been referred to and followed with approval by Santosh J. (now of revered memory) in Laxmimanojana v. Sujnandra . [1970 (2) Mys. L.J. 82.] His Lordship in setting out the guidelines directing the exercise of power by the Appellate Court in these matters and in setting out the circumstances under which the Court of appeal could interfere in an appeal from an interlocutory order, made the following enunciation which bears reproduction: “If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion; but if it appears to the Appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would be open to the Appellate Court to interfere with the trial Court's exercise of discretion.” (Emphasis supplied)" 8. It is clear from the aforementioned enunciation of law that the scope of the Court of appeal is limited, yet in the case on hand, the Appellate Court has gone above and beyond the said scope and even recorded a finding on the title of the petitioners, such an exercise by the Appellate Court is impermissible. The Appellate Court, based on the RTC, recorded the finding with regard to the possession. The Appellate Court, based on the RTC, recorded the finding with regard to the possession. Admittedly, the RTC in respect of Sy.No.47/7 was pursuant to the order dated 05.09.2013 of the Assistant Commissioner which is evident from Column 11 of the RTC at Annexure-G. The sale deed in question is of the year 1963 and the petitioners are claiming that they are in uninterrupted possession of the suit schedule property based on the said sale deed and the petitioners have produced number of documents to substantiate their claim with regard to possession of the suit schedule property. I am of the considered view that the petitioners have made out a prima facie case for grant of injunction. A perusal of the written statement, the objections to the application and the material available on record clearly demonstrate that the petitioners are in possession of the suit schedule property and the balance of convenience lie in their favour. I am of the considered view that the suit is of the year 2012 and if at this stage, the petitioners' possession is disturbed, it would lead to multiplicity of proceedings and irreparable injury would cause to the petitioners. On the other hand, no hardship or prejudice would be caused to the respondents if interim protection is provided to the petitioners. 9. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 16.10.2014 passed in M.A. No.8/2014 by the I Addl. Sr. Civil Judge at Davanagere, is set aside. Consequently, M.A.No.8/2014 is dismissed by confirming the order dated 29.01.2014 passed by the Addl. Civil Judge, Davanagere on I.A. 1 in O.S.No.747/2012.